R v LTH – Subjectively Objective? Objectively Subjective?

The Supreme Court of Canada’s (“SCC”) ruling in R v LTH, [2008] 2 SCR 739 [LTH], while a welcome one for defenders of criminal justice rights of young offenders, is one that invites comment upon the SCC’s continuing interest in promoting objectivity in decision of law – even where an objective standard may not reasonably exist.

L.T.H. was arrested for dangerous driving causing bodily harm. When arresting him, the police gave L.T.H. a standard young offender statement form, which enumerated his rights in the situation (right to counsel, right to consult a parent or adult in private, right to have a lawyer and adult present during his statement) and asked him, after reading him these rights, if he understood. L.T.H. interrupted the reading to state that he was not going to answer the questions, at which point it was explained that the questions were simple “do you understand” queries. At the end, L.T.H. stated he understood his rights, then waived them and provided a statement showing guilt without counsel.

L.T.H.’s mother, in a voir dire held to determine the admissibility of the statement, testified that L.T.H. had a learning disorder and that in previous run-ins with the police, he needed her to explain questions to him. The trial judge decided that the statement was inadmissible, as it conflicted with the statutory requirements set out in ss. 146(2)(b) and (146)(4) of the Youth Criminal Justice Act, SC 2002, c 1, which state:

146 (2). No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

(i) the young person is under no obligation to make a statement,

(ii) any statement made by the young person may be used as evidence in proceedings against him or her,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise…

146 (4). A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver

(a) must be recorded on video tape or audio tape; or

(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

The burden to prove all of these elements lies on the Crown, and the trial judge ruled that the Crown had not proved beyond a reasonable doubt that L.T.H. had understood his rights. However, the Nova Scotia Court of Appeal overturned the trial judge’s verdict, deciding instead that the Crown only must prove in such situations that the authorities clearly explained to the individual their rights.

The SCC, in a unanimous decision, overturned the Court of Appeal’s decision and sided with the original trial judge, arguing for an approach best described as “individually objective” in creating a test for whether a young person was adequately explained their rights. The SCC’s test is as follows: there is no burden on the Crown to prove that a young individual understood their rights as explained to them, but there is a burden on the Crown to prove that the explanation of their rights be provided in language “appropriate to the particular young person’s age and understanding.”

Both the Court of Appeal and the SCC criticized the trial judge’s decision as being “subjective,” which is a fair comment given that the burden placed upon the Crown was one of proving another individual’s understanding – proving a given mental state is already the highest burden usually placed upon the Crown to begin with in criminal trials, and proving understanding would be, in practice, far more difficult than proving intent, which manifests itself through direct action far more obviously than understanding.

However, the SCC’s test is one of those instances in criminal law where the notion of objectivity becoming individualized forces the reader to consider whether or not this is in fact a subjective test, cloaked in the appealing idea of objectivity. An objective opinion of what explanatory language is appropriate for a given age and level of understanding obviously does not exist in codified form, but more importantly there is no agreed-upon reasonable standard to which an uncertain judge can adhere beyond broad concepts (younger children require simpler language, and so forth). Judges will obviously have to rely greatly upon their own opinion, creating what is for all intents and purposes a subjective standard.

Finally it is worth noting that the difference between making sure a young individual understands their rights and making sure that the young individual has had their rights explained to them in language they can understand is very minute, if it even exists at all. The cynical reader might thus conclude that the SCC sought to recast the trial judge’s subjective decision in the favourably-viewed light of objectivity without really changing any serious element of the decisionmaking process.